AND16 v Minister for Immigration

[2016] FCCA 1419

FEDERAL CIRCUIT COURT OF AUSTRALIA

AND16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1419

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal failed to address integers of the applicant’s claims – whether the Tribunal failed to exercise its jurisdiction – whether the Tribunal misapplied or misconstrued the relevant legislation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 476, 477

Applicant: AND16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 536 of 2016

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 536 of 2016

AND16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 1 February 2016 affirming a decision of a delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 12 August 2012. The applicant’s claims were assessed against Sri Lanka as the country of reference.

2. The applicant claimed to fear harm because he supported the United Nation Party (UNP) and he had assisted the UNP in the 1984 elections by putting up posters and attending meetings.  The applicant claimed he was asked to join the UNP by Joseph Perera, a UNP member.  The applicant alleged that after he got married and moved to a village, he was asked by Joseph Perera to become a political organiser for the UNP in the Negombo division.  In 2001, the applicant claimed that he helped put up posters, distribute leaflets and encouraged people to go to election rallies.

3. The applicant claimed that his wife received threatening telephone calls in 2001.  The applicant claims that men broke into his house in 2002 and kidnapped him and cut him with a knife and shot him three times.  The applicant claims that he awoke in a hospital and was released in March 2003.  The applicant claims that in 2009, he was approached by several men at the fish market that told him he could not sell fish and destroyed his store. The applicant claims that he assisted in the presidential election to campaign for Sarath Fonseka. 

4. The applicant alleges that in February 2010, several men visited his wife and asked about his whereabouts and that his wife was beaten and his daughter and son-in-law when they tried to intervene were also beaten.  The applicant alleges that in May 2012, that men came to his or aunt’s home looking for the applicant.  The applicant also raised before the Tribunal that he feared harm from one particular politician, being Sarath Gunthana.  The delegate accepted that the applicant was a UNP supporter but found that the applicant did not have any risk profile that put him at risk and that he did not hold a significant influential or leadership role in the party.

5. It was in those circumstances that the delegate refused to grant the visa application.  On 21 October 2013, the applicant applied for review.  The applicant initially appeared before a differently constituted Tribunal on 3 March 2015.  The applicant was then invited by letter dated 17 August 2015 to appear before the currently constituted Tribunal on 5 November 2015 to give evidence and present arguments, and the applicant appeared on that date, and was the subject of a further invitation by letter dated 30 November 2015 to appear again before the Tribunal on 12 January 2016, and the applicant appeared on that date.

6. On both dates, the applicant gave evidence and presented arguments.  The applicant was also assisted by an interpreter and represented by his registered migration agent.  The Tribunal made adverse credit findings in respect of some of the applicant’s evidence and some of his claims.  The Tribunal found that the applicant did not have a well-founded fear of persecution if he returned to Sri Lanka.  The Tribunal did not accept the applicant’s claims that the incidents he said occurred in 2002 and 2009 were caused because of any political activity that the applicant engaged in.

7. The Tribunal considering the totality of the evidence in its assessment of the applicant’s credibility, did not accept that the applicant was attacked in June 2002 because of any political activities that he engaged in on behalf of the UNP.  The Tribunal found, after considering the totality of the issues and evidence, that it did not accept the applicant had a well-founded fear of harm based on his claims concerning Guntharan and did not accept that the evidence indicates or supports the applicant’s claims that he faces a real chance of serious harm from Guntharan should he return to Sri Lanka either now or in the reasonably foreseeable future on the basis of his political opinion.

8. The Tribunal did not accept the applicant had a well-founded fear of harm on the basis of his claim of his political opinion in terms of his support for the UNP or that he would be perceived to have a political opinion of opposition to the Sri Lankan government.  The Tribunal did not accept that the evidence indicated that the applicant faced a real chance of serious harm on the basis of his political opinions in terms of his support to the UNP or a perception that he is opposed to the Sri Lankan government should he return to Sri Lanka now or in the reasonably foreseeable future.

9. The Tribunal did not accept on the basis of the applicant’s evidence and country information that the applicant had a well-founded fear of harm if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of a perceived political opinion that he is opposed to the Sri Lankan government on the basis that he left Sri Lanka unlawfully and sought asylum in a western country. 

10. The Tribunal identified after considering the applicant’s claims cumulatively it did not accept on the basis of the evidence and materials before the Tribunal that the applicant faced a real chance of serious harm for a convention-based reason if he returns to Sri Lanka either now or in the reasonably foreseeable future.

11. The Tribunal, in terms of the issue of complementary protection found after considering the applicant’s claims and submissions that it was not satisfied that there were reasonable grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental is intentionally inflicted on the applicant for the reasons specified in paras.(a) to (e) of the definition of torture in s.5(1) of the Act.

12. The Tribunal found that there were not substantial grounds for believing that there is a real risk that the applicant would suffer harm that would involve intentional infliction of severe pain or suffering, either physical or mental in all the circumstances, or that the applicant would be exposed to an act or omission that could reasonably be regarded as cruel, inhumane in nature, such as meeting the definition of cruel or inhumane treatment or punishment in s.5(1) of the Act.

13. The Tribunal was not satisfied there were substantial grounds for believing that there is a real risk that the applicant would suffer such harm to meet the definition of degrading treatment or punishment in s.5(1) of the Act, and the Tribunal found that there were not substantial grounds for believing that there is a real risk the applicant would suffer arbitrary depravation of his life or penalty. It was in those circumstances that the Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate.

14. The application for review was filed two days out of time and, accordingly, the present application is an application under s.477 of the Migration Act 1958 for an extension of time. 

15. On 28 April 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file affidavit evidence and amended application and submissions.  No such documents were filed.  The grounds of the application are as follows:

    1. The AAT has failed to deal with the full integers of the Applicant's claims pursuant to section 36(2)(aa) of the Migration Act 1958.

    Particulars

    a. The reasons for refusing the Applicant's claims under section 36(2)(aa) are confined to paragraph [81] of the decision;

    b. The applicant squarely raised a claim that the Applicant maybe harmed because of his political support of the United National Party;

    c. At paragraph [71] the AAT accepted that the Applicant was a supporter of the United National Party;

    d. The failure to deal with the squarely raised claim under the complementary protection provision amounts to a failure to exercise jurisdiction.

    2. The AAT has failed to deal with the full integers of the Applicant's claims pursuant to section 36(2)(a) of the Migration Act 1958.

    a. The Applicant had referred to himself as a successful businessman at paragraph [34] of the decision;

    b. The AAT has failed to consider whether the applicant faces a real chance of extortion as a failed asylum seeker in Sri Lanka

    3. The AAT misconstrued or misapplied s 91R of the Act

    a. The Tribunal found that the Applicant 'may be remanded' [81];

    b. The AAT also found that the prison conditions in Sri Lanka are poor.;

    c. Taking into account of the findings of the AAT above, the tribunal should have found that, or alternatively failed to consider whether the Applicant faced serious harm in the form of a 'threat to his liberty'.

16. At the commencement of the hearing, the Court explained to the applicant that the applicant’s application required an extension of time under s.477 of the Migration Act 1958.

17. The Court explained that this involved, first, a satisfactory explanation for the delay and, secondly, sufficiently arguable grounds to warrant an extension of time in the interest of the administration of justice.  The Court explained that there had to be a sufficiently arguable case of legal error by the Tribunal to warrant an extension of time.  The Court explained that it had to be satisfied the Tribunal’s decision was either the subject of an argument that it was unlawfully made or unfairly made. 

18. The applicant confirmed that he understood the nature of the hearing as explained by the Court.  The applicant proffered an explanation for the two days delay, which, although not the subject of sworn evidence, the Court is willing to accept as being a satisfactory explanation, and this was conveyed to the applicant.  The applicant was informed that the real issue was whether or not there were sufficiently arguable grounds and that the Tribunal’s decision was not lawfully made or was not fairly made.

19. From the bar table the applicant took issue with the Tribunal not accepting his evidence.  The applicant asserted that the adverse credibility findings were based on his failure to produce certified evidence.  The reasons of the Tribunal do not support any such proposition.  The applicant made reference to the fact that he was shot and asserted that he provided medical evidence to the Tribunal.  The Tribunal referred to the applicant’s claim that he was shot and referred to the medical evidence that did not disclose any medical opinion of any gunshot wound. 

20. The applicant sought an adjournment in the course of the hearing.  The applicant identified that he had not given any earlier notice of the adjournment application to the respondent.  The applicant alleged that he needed more time.  When the applicant was asked why he needed more time, and indicated that it was so that he could obtain help. 

21. The applicant did not identify from whom the applicant would be able to obtain help, or any basis to form a view that there would be any utility in granting an adjournment.  The adjournment was opposed by the first respondent.  I am not satisfied that an adjournment was required in the interests of the administration of justice. I am of the view that an adjournment would only unnecessarily add to the cost of the parties and utilise limited Court time. Nothing said by the applicant identified a proper basis upon which an adjournment should be granted.  It was for these reasons that the adjournment was refused. 

22. The applicant asked for an opportunity for the matter to be sent back for further hearing.  The applicant alleged that he had not obtained justice before the Tribunal.  On the face of the material before the Court, the Court is satisfied that the applicant had a genuine hearing and that the Tribunal complied with its statutory obligations.  There is nothing on the face of the material before the Court or on the reasons of the Tribunal to support any arguable case of a denial of procedural fairness by the Tribunal.

23. In relation to ground 1, it is apparent that the Tribunal dealt with the applicant’s claims in relation to his political support of the United National Party and the adverse findings made by the Tribunal were open and cannot be said to be unreasonable. Nothing in ground 1 identifies any arguable case of jurisdictional error. I accept the first respondent’s submission that on a fair reading of the Tribunal’s decision, it is apparent that the Tribunal dealt with the applicant’s application under s.36(2)(aa) as well as the applicant’s application under s.36(2)(a) of the Migration Act 1958.

24. In relation to ground 2, the applicant raised an allegation that he faced a chance of extortion.  No such claim was raised before the Tribunal, and no such claim arose on the material before the Tribunal.  Ground 2 fails to make out any arguable case of jurisdictional error. 

25. In relation to ground 3, it is apparent that the Tribunal took into account the conditions to which the applicant would be exposed. In considering the applicant’s claims in respect of complimentary protection there is nothing in the Tribunal reasons to support any misconstruction or misapplication of s.91R of the Migration Act 1958 by the Tribunal.

26. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, at paras.[24]-[25] and [59]-[60].. I am satisfied that the application fails to disclose any arguable case of jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I am satisfied that the application fails to identify a sufficiently arguable case to warrant any extension of time under s.477 of the Migration Act 1958 in the interests of the administration of justice. 

27. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:22 June 2016